Justice, Legal and Parliamentary Affairs Minister Ziyambi
Ziyambi and Attorney General Advocate Prince Machaya last week separately filed
their notices of appeal against an urgent High Court judgment made on May 15.
They are challenging the High Court decision to annul the
extension of Justice Malaba’s service beyond the age of 70 on the grounds that
the recent Constitutional Amendment allowing judges, including the Chief
Justice, the option of serving to 75 could not include sitting judges of the
Constitutional and Supreme Courts but did include sitting judges of the High
Court.
The noting of an appeal to the Supreme Court effectively
suspends the order of the High Court paving way for Chief Justice Malaba to be
back in the revered judicial office by operation of law.
This also means that Deputy Chief Justice Elizabeth Gwaunza
who had assumed the position of acting Chief Justice reverts to her position as
Chief Justice Malaba’s deputy.
In an interview yesterday, Judicial Service Commission
Secretary Mr Walter Chikwanha confirmed that Chief Justice Malaba was back at
work and executing his judicial functions.
“Chief Justice Malaba has always been at work since the day
the Government filed a notice of appeal against the decision of the High
Court,” he said.
“It’s by operation of the law. Once the appeal was filed
the order of the High Court was in effect suspended until the determination of
the appeal.”
On May 15, High Court judges — Justices Happias Zhou, Edith Mushore and
Jester Charewa blocked the Government move to extend Justice Malaba’s tenure by
five years as allowed by Constitutional Amendment Act Number 2.
In terms of that Act, the retirement age for all judges is
now 70 but every judge has the option to serve until the age of 75 so long as
they are mentally and physically fit to do so and exercise that option before
their 70th birthday.
This the Chief Justice did and with his medical certificate
has his term extended. The three High Court judges ruled that the Chief Justice
ceased to be the Chief Justice upon reaching 70 years on Saturday and that the
option of an extension of service did not apply to incumbent judges of the
Constitutional Court and the Supreme Court. However, Minister Ziyambi and Adv
Machaya want the judgment of the High Court set aside.
Chief Justice Malaba attained the age of 70 on Saturday,
but as the now amended section of the Constitution allows, he exercised his
option before his birthday to continue until 75 and submitted the required
medical certificate that he was in good mental and physical health.
The Judicial Service Commission has since announced that
Deputy Chief Justice Elizabeth Gwaunza is now the acting Chief Justice, pending
the outcome of the appeal. Herald
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